James S. THOMPSON, Appellant v. Norman HOWARD, Redstone Township Policeman; Roy Mehalik, Luzerne Township Policeman; Trooper Broadwater, PA State Police
No. 15-3338
United States Court of Appeals, Third Circuit.
February 17, 2017
177
Caitlin R. Garber, Reed Smith, 225 Fifth Avenue—Ste. 1200, Pittsburgh, PA 15222
Michael P. Yingling [ARGUED], Reed Smith, 10 S. Wacker Drive—40th Fl., Chicago, IL 60606, Counsel for Appellant
Louis C. Long [ARGUED], Thomas P. McGinnis, Karin M. Romano, Thomas Thomas & Hafer, 525 William Penn Place—Ste. 3750, Pittsburgh, PA 15219, Counsel for Appellee
Before: JORDAN, VANASKIE, and KRAUSE, Circuit Judges.
OPINION *
JORDAN, Circuit Judge.
The question presented to us is whether a police officer acts in violation of clearly established law when he shoots at a person who, after crashing a car into an occupied police cruiser, is fleeing blindly at high speed in a residential neighborhood, driv-
I. BACKGROUND
A. Factual Background 1
In Republic, Pennsylvania, on the evening of March 9, 2008, Plaintiff James S. Thompson was a passenger in a car being driven by his girlfriend, Rae Lynn Sigwalt. Defendant Norman Howard, an on-duty police officer, recognized Sigwalt, whom he had encountered before. Howard was aware that Sigwalt was the subject of an outstanding arrest warrant, and he began to follow her. When Sigwalt made a turn without signaling, he pulled her over.
After asking for Sigwalt‘s license and registration, Howard confirmed that Sigwalt was still wanted for arrest and asked her to step out of her vehicle. Thompson asked why they were being stopped, and Howard told him to “shut up.” (App. at 2.) Howard then handcuffed Sigwalt and put her into the police car.
At that point, according to Howard, he saw Thompson turning his head, moving about, and appearing to reach for something.2 He also alleges that he observed Thompson‘s hands down below the seat. He therefore asked Thompson for identification and told him to get out of the car.
Howard then performed a pat down of Thompson, which revealed no weapons. Thompson gave Howard his name and social security card. Howard then checked Thompson‘s name with county dispatch, using his portable radio. Howard‘s inquiry returned no outstanding warrants, but he was told by Officer Roy Mehalik, the police chief of a neighboring township, that he “might want to use some caution with [Thompson],” (id. at 4), and that Thompson was “dangerous” (id. at 671). Mehalik said that he would come to the scene to help Howard. When he heard Mehalik‘s voice, Thompson became agitated because, as he later explained, Mehalik had bullied him as a child.
Howard told Thompson that, if there was no outstanding warrant for his arrest, he would be free to go. Nevertheless, Howard insisted that Thompson be handcuffed. Thompson says he was never told why that was necessary and that, when questioned, Howard cursed at him. Thompson refused to submit to the handcuffs and insisted that there was no reason that he should be cuffed.
After Thompson repeatedly refused to be cuffed, Howard threatened to use his taser. Howard claims that Thompson then moved towards the passenger side of the car,3 leading Howard to fear that there might be a weapon in the vehicle. Howard decided to use his taser and did so twice, but neither attempt affected Thompson. During one of those attempts, Howard ac-
After circling the car several times, Thompson jumped into the driver‘s seat, locked the door, and started the engine with the keys that had been left in the ignition. Howard asserts that he could not see what Thompson was doing with his hands, so he smashed the glass of the driver‘s side window with his baton. Howard reached into the car, began to again hit Thompson with the baton, and threatened to shoot him. Meanwhile, Mehalik had arrived at the scene and parked nearby.
Thompson continued his efforts to escape. He put the car in gear and drove away while Howard‘s arms were still inside the vehicle. Leaning towards the passenger side to avoid baton blows, he steered into Mehalik‘s police cruiser just as Mehalik was opening the driver‘s side door. The collision caused only minor damage to the cruiser and did not injure Mehalik.4 The parties dispute whether Howard could see that Mehalik had not been struck by the vehicle. Howard claims that he could not see what happened to Mehalik and feared
for his fellow officer‘s safety. Thompson argues to the contrary that, because Howard was standing in the middle of the road, he could have easily seen Mehalik throughout the encounter.
In an attempt to get around Mehalik‘s vehicle, Thompson then drove across a resident‘s yard and driveway. He admits that his gas pedal was pressed “all the way to the floor” and that he was not looking at the road because he was still leaning towards the passenger side of the vehicle. (Id. at 249.) When Thompson was about 10 to 12 feet away,5 Howard pulled out his handgun and fired five shots at him. Thompson asserts that he was driving away from Howard the whole time. Mehalik, claiming that he believed the vehicle was about to strike Howard, also fired one shot at Thompson. At the time both officers were shooting, there were no bystanders visible nor any moving cars in the vicinity.
None of the six bullets directly hit Thompson. He later said, somewhat inconsistently, that one grazed his head but also that he never claimed to be injured in any physical manner. He continued driving away, passed through another resident‘s yard, and nearly struck a parked vehicle. As he drove, he continued to keep his head down to avoid the gunfire. Thompson was
B. Procedural Background
The legal consequences of the melee began immediately. Thompson was charged in state court with two counts of aggravated assault and counts for simple assault, resisting arrest, and criminal mischief. The charge of resisting arrest was dismissed because the judge concluded that Howard‘s attempt to handcuff Thompson was not a lawful arrest. A jury ultimately found Thompson guilty of one count of aggravated assault, and of simple assault and criminal mischief.
Thompson subsequently filed this action under
After discovery, Howard filed a motion for summary judgment, which the Court granted. The Court ruled that “[w]hen balancing the force used by [Howard] against the safety of the officers at the scene and the possible harm to those in the immediate vicinity, [Howard‘s] use of force was objectively reasonable.” (Id. at 18). In the alternative, it held that, “even if a reasonable jury could conclude from this record that any of the force used was excessive under the particular facts of this case, [Howard] is entitled to qualified immunity.” (Id.) Thompson filed the present appeal and focuses his arguments on Howard‘s use of a firearm, rather than the taser and baton.
II. DISCUSSION 7
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The inquiry has two parts. One question is whether the plaintiff has alleged sufficient facts to “make out a violation of a constitutional right.” Id. at 232. The other question is “whether the right at issue was clearly established at the time of [the] defendant‘s alleged misconduct.” Id. (internal quotation marks omitted). It is within our “sound discretion,” id. at 242, to tackle these steps “in the order we deem most appropriate for the particular case before us.” Santini v. Fuentes, 795 F.3d 410, 418 (3d Cir. 2015).
Here, we exercise that discretion to affirm on the basis of the second part of the qualified immunity test, without deciding whether Howard‘s actions did in fact violate Thompson‘s constitutional rights. This is a case “in which the constitutional question is so factbound that [a] decision provides little guidance for future cases,” Pearson, 555 U.S. at 237, at least as to the constitutionality of the police conduct. Because answering the first
To decide if a use of force was “objectively reasonable[,]” we consider the “severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officer or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight.” Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). An officer‘s use of deadly force is excessive when it is not “objectively reasonable for the officer to believe, in light of the totality of the circumstances, that deadly force was necessary to prevent the suspect‘s escape, and that the suspect posed a significant threat of death or serious physical injury to the officer or oth-ers[.]” Abraham v. Raso, 183 F.3d 279, 289 (3d Cir. 1999).
Here, we focus solely on the shooting that followed Thompson‘s vehicular flight.8 In that light, and under controlling Supreme Court case law and the totality of the circumstances, we cannot say it was objectively unreasonable for Howard to believe that resort to lethal force was warranted. That threshold is a high one. Qualified immunity exists because “it is inevitable that law enforcement officials will in some cases reasonably but mistakenly” believe that their actions are legally justified. Anderson v. Creighton, 483 U.S. 635, 641 (1987). Qualified immunity “gives ample room for mistaken judgments” and “protect[s] all but the plainly incompetent or those who knowingly violate the law.” See Kelly v. Borough of Carlisle, 622 F.3d 248, 254 (3d Cir. 2010) (internal quotation marks and citations omitted). Therefore, qualified immunity applies unless the conclusion that the officer acted unreasonably is “beyond debate.” Mullenix v. Luna, 577 U.S. 7, 12 (2015). In other words, it applies unless “every reasonable official would [have understood] that what he [was] doing violate[d]” the right at issue. Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation marks and citation omitted) (first alteration in original). While “[w]e do not require a case directly on point, ... existing precedent
Far from putting the question beyond debate, two Supreme Court cases involving the use of lethal force and high speed flight illustrate well “the sometimes hazy border between excessive and acceptable force.” Brosseau v. Haugen, 543 U.S. 194, 195 (2004).
In Brosseau v. Haugen, an officer pursued a suspect who ran away and started a car. 543 U.S. at 196. The officer tried to stop him by pounding on the car window with a handgun. Id. The suspect still began to drive away and the officer shot and killed him. Id. The factual similarities to this case are significant in many respects, and yet the Supreme Court concluded that it was not clearly established that the use of force was improper. Id. at 201.
Likewise, in Mullenix v. Luna, the Court reversed a denial of summary judgment and held that the officer in question, Mullenix, was entitled to qualified immunity when he shot at “a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer at [a road block]“. 136 S.Ct. at 309. The “correct inquiry,” the Supreme Court instructed, was “whether it was clearly es-
tablished that the Fourth Amendment prohibited the officer‘s conduct in the situation [the officer] confronted: whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight,” and the answer the Court gave was that it was not: “Far from clarifying the issue, excessive force cases involving car chases reveal the hazy legal backdrop against which Mullenix acted.” Id. at 309 (internal quotation marks omitted).
After reviewing its excessive force cases, the Court went on to observe that it “has never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for denying qualified immunity.” Id. at 310. The reasonableness of an officer‘s decision to use force against a suspect to protect other people did not turn on whether the suspect was in fact about to come upon other people or whether the officer knew with certainty that such a circumstance would develop. Rather, the Court recounted, it had held previously that an officer did not violate clearly established law and thus was entitled to qualified immunity “when she shot a fleeing suspect out of fear that he endangered ‘other officers on foot who [she] believed were in the immediate area,’ ‘the occupied vehicles in [his] path,’ and ‘any other citizens who might be in the area.‘” Id. at 309-10 (quoting Brosseau v. Haugen, 543 U.S. 194, 197 (2004)) (alterations in original). And it
So too here. It is beyond dispute that, by the time Howard began shooting, Thompson had already demonstrated a reckless disregard for the safety of others by crashing into Mehalik‘s police car as Mehalik was getting out of it. Thompson then compounded that recklessness by blindly fleeing with the gas pedal “all the way to the floor,” driving over sidewalks and lawns in a residential neighborhood. (App. at 693, 1011, 1012). Thus, regardless of whether Thompson was at that moment driving towards or away from the officers, it was not objectively unreasonable for Howard, when confronted with Thompson‘s dangerous, chaotic, high-speed flight, to believe that Thompson posed a serious risk to persons who might be in the area and to resort to deadly force to prevent such per-
sons from being injured. See, e.g., Mullenix, 136 S.Ct. at 310-11; Brosseau, 543 U.S. at 197. As in Mullenix, we cannot say that Supreme Court precedent “squarely governs” the facts here; nor can we say that “only someone ‘plainly incompetent’ or who ‘knowingly violate[s] the law’ would have perceived a sufficient threat and acted as [Howard] did.” Mullenix, 136 S.Ct. at 310 (citation omitted) (alteration in original).10
Contrary to Thompson‘s assertions, our own case law is also in accord. While he argues that Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999), requires a different result, that decision is distinguishable in two ways. First, Abraham did not address qualified immunity and instead found that summary judgment was inappropriate due to a material dispute of fact. Id. at 294 (concluding that “a jury will have to determine, after deciding what the real risk to [the officer] was, what was objectively reasonable for an officer in [that officer‘s] position to believe about her safety, giving due regard to the pressures of the moment“). Therefore, it is not certain whether the court would have concluded that no reasonable officer could have responded as the officer did there. The other salient difference is that the plaintiff in Abraham hit a parked, unmanned car, and there was a material dispute of fact as to whether he posed a risk to any officer at all. Id. at 283. In contrast, Thompson hit a marked and manned police vehicle with sufficient force
In conclusion, we again emphasize the narrow scope of our holding. We do not say that Howard was right to have fired at Thompson, or that Howard‘s earlier actions were justifiable. Instead, we simply conclude that, in light of precedent such as Mullenix and Brosseau, it is not beyond debate that a reasonable officer in Howard‘s shoes could have thought the use of deadly force was lawful. Accordingly, we cannot say that it was clearly established that Howard‘s decision to fire at Thompson involved excessive force. Qualified immunity applies in exactly such circumstances.
III. CONCLUSION
For the foregoing reasons, we will affirm the District Court‘s order of dismissal.
JORDAN
CIRCUIT JUDGE